CRS Annotated Constitution

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Section 2. Judicial Power and Jurisdiction

Clause 2. In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be a Party, the Supreme Court shall have original Jurisdiction. In all other Cases before mentioned, the Supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.


From the beginning, the Supreme Court has assumed that its original jurisdiction flows directly from the Constitution and is[p.777]therefore self–executing without further action by Congress.1041 In Chisholm v. Georgia,1042 the Court entertained an action of assumpsit against Georgia by a citizen of another State. Congress in Sec. 3 of the Judiciary Act of 17891043 purported to invest the Court with original jurisdiction in suits between a State and citizens of another State, but it did not authorize actions of assumpsit in such cases nor did it prescribe forms of process for the exercise of original jurisdiction. Over the dissent of Justice Iredell, the Court, in opinions by Chief Justice Jay and Justices Blair, Wilson, and Cushing, sustained its jurisdiction and its power to provide forms of process and rules of procedure in the absence of congressional enactments. The backlash of state sovereignty sentiment resulted in the proposal and ratification of the Eleventh Amendment, which did not, however, affect the direct flow of original jurisdiction to the Court, although those cases to which States were parties were now limited to States as party plaintiffs, to two or more States disputing, or to United States suits against States.1044

By 1861, Chief Justice Taney could confidently enunciate, after review of the precedents, that in all cases where original jusrisdiction is given by the Constitution, the Supreme Court has authority “to exercise it without further act of Congress to regulate its powers or confer jurisdiction, and that the court may regulate and mould the process it uses in such manner as in its judgment will best promote the purposes of justice.”1045

Although Chief Justice Marshall apparently assumed the Court had exclusive jurisdiction of cases within its original jurisdiction,1046 Congress from 1789 on gave the inferior federal courts concurrent jurisdiction in some classes of such cases.1047 Sustained in the early years on circuit,1048 this concurrent jurisdiction was finally approved by the Court itself.1049 The Court has also relied on the first Congress’ interpretation of the meaning of Article III[p.778]in declining original jurisdiction of an action by a State to enforce a judgment for a precuniary penalty awarded by one of its own courts.1050 Noting that Sec. 13 of the Judiciary Act had referred to “controversies of a civil nature,” Justice Gray declared that it “was passed by the first Congress assembled under the Constitution, many of whose members had taken part in framing that instrument, and is contemporaneous and weighty evidence of its true meaning.”1051

However, another clause of Sec. 13 of the Judiciary Act of 1789 was not accorded the same presumption by Chief Justice Marshall, who, interpreting it as giving the Court power to issue a writ of mandamus on an original proceeding, declared that as Congress could not restrict the original jurisdiction neither could it enlarge it and pronounced the clause void.1052 While the Chief Justice’s interpretation of the meaning of the clause may be questioned, no one has questioned the constitutional principle thereby proclaimed. Although the rule deprives Congress of power to expand or contract the jurisdiction, it allows a considerable latitude of interpretation to the Court itself. In some cases, as in Missouri v. Holland,1053 the Court has manifested a tendency toward a liberal construction of its original jurisdiction, but the more usual view is that “our original jurisdiction should be invoked sparingly.”1054 Original jurisdiction “is limited and manifestly to be sparingly exercised, and should not be expanded by construction.”1055 Exercise of its original jurisdiction is not obligatory on the Court but discretionary, to be determined on a case– by–case basis on grounds of practical necessity.1056 It is to be honored “only in appropriate cases. And the[p.779]question of what is appropriate concerns of course the seriousness and dignity of the claim; yet beyond that it necessarily involves the availability of another forum where there is jurisdiction over the named parties, where the issues tendered may be litigated, and where appropriate relief may be had. We incline to a sparing use of our original jurisdiction so that our increasing duties with the appellate docket will not suffer.”1057 But where claims are of sufficient “seriousness and dignity,” in which resolution by the judiciary is of substantial concern, the Court will hear them.1058

Cl 2.—Power of Congress to Control the Federal Courts

The Theory of Plenary Congressional Control

Unlike its original jurisdiction, the appellate jurisdiction of the Supreme Court is subject to “exceptions and regulations” prescribed by Congress, and the jurisdiction of the inferior federal courts is subject to congressional prescription. Additionally, Congress has power to regulate modes and practices of proceeding on the part of the inferior federal courts. Whether there are limitations to the exercise of these congressional powers, and what the limitations may be, are matters that have vexed scholarly and judicial interpretation over the years, inasmuch as congressional displeasure with judicial decisions has sometimes led to successful efforts to “curb” the courts and more frequently to proposed but unsuccessful curbs.1059 Supreme Court holdings establish clearly the[p.780]breadth of congressional power, and numerous dicta assert an even broader power, but that Congress may through the exercise of its powers vitiate and overturn constitutional decisions and restrain the exercise of constitutional rights is an assertion often made but not sustained by any decision of the Court.


1041 But in Sec. 13 of the Judiciary Act of 1789, 1 Stat. 80 , Congress did so purport to convey the jurisdiction and the statutory conveyance exists today. 28 U.S.C. Sec. 1251 . It does not, however, exhaust the listing of the Constitution.
1042 Dall. (2 U.S.) 419 (1793). In an earlier case, the point of jurisdiction was not raised. Georgia v. Brailsford, 2 Dall. (2 U.S.) 402 (1792).
1043 1 Stat. 80 .
1044 On the Eleventh Amendment, see infra. On suits involving States as parties, see supra.
1045 Kentucky v. Dennison, 24 How. (65 U.S.) 66, 98 (1861).
1046 Marbury v. Madison, 1 Cr. (5 U.S.) 137, 174 (1803).
1047 In Sec. 3 of the 1789 Act. The present division is in 28 U.S.C. Sec. 1251 .
1048 United States v. Ravara, 2 Dall. (2 U.S.) 297 (C.C.Pa. 1793).
1049 Rhode Island v. Massachusetts, 12 Pet. (37 U.S.) 657 (1838); Bors v. Preston, 111 U.S. 252 (1884); Ames v. Kansas ex rel. Johnson, 111 U.S. 449 (1884). Such suits could be brought and maintained in state courts as well, the parties willing. Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511 (1898); Ohio ex rel. Poporici v. Alger, 280 U.S. 379 (1930).
1050 Wisconsin v. Pelican Ins. Co., 127 U.S. 265 (1888).
1051 Id., 297. See also the dictum in Cohens v. Virginia, 6 Wheat. (19 U.S.) 264, 398–399 (1821); Chisholm v. Georgia, 2 Dall. (2 U.S.) 419, 431–432 (1793).
1052 Marbury v. Madison, 1 Cr. (5 U.S.) 137 (1803). The Chief Justice declared that “a negative or exclusive sense” had to be given to the affirmative enunciation of the cases to which original jurisdiction extends. Id., 174. This exclusive interpretation has been since followed. Ex parte Bollman, 4 Cr. (8 U.S.) 75 (1807); New Jersey v. New York, 5 Pet. (30 U.S.) 284 (1831); Ex parte Barry, 2 How, (43 U.S.) 65 (1844); Ex parte Vallandigham, 1 Wall. (68 U.S.) 243, 252 (1864); Ex parte Yerger, 8 Wall. (75 U.S.) 85, 98 (1869). In the curious case of Ex parte Levitt, 302 U.S. 633 (1937), the Court was asked to unseat Justice Black on the ground that his appointment violated Article I. Sec. 6, cl.2. Although it rejected petitioner’s application, the Court did not point out that it was being asked to assume original jurisdiction in violation of Marbury v. Madison.
1053 252 U.S. 416 (1920). See also South Carolina v. Katzenbach, 383 U.S. 301 (1966), and Oregon v. Mitchell, 400 U.S. 112 (1970).
1054 Utah v. United States, 394 U.S. 89, 95 (1968).
1055 California v. Southern Pacific Co., 157 U.S. 229, 261 (1895). Indeed, the use of the word “sparingly” in this context is all but ubiquitous. E.g., Wyoming v. Oklahoma, 112 S.Ct. 789, 798–800 (1992); Maryland v. Louisiana, 451 U.S. 725, 739 (1981); United States v. Nevada, 412 U.S. 534, 538 (1973).
1056 Texas v. New Mexico, 462 U.S. 554, 570 (1983).
1057 Illinois v. City of Milwaukee, 406 U.S. 91, 93–94 (1972). In this case, and in Washington v. General Motors Corp., 406 U.S. 109 (1972), and Ohio v. Wyandotte Chemicals Corp., 401 U.S. 493 (1971), the Court declined to permit adjudication of environmental pollution cases manifestly within its original jurisdiction because the nature of the cases required the resolution of complex, novel, and technical factual questions not suitable for resolution at the Court’s level as a matter of initial decision but which could be brought in the lower federal courts. Not all such cases, however, were barred. Vermont v. New York 406 U.S. 186 (1972) (granting leave to file complaint). In other instances, notably involving “political questions,” cf. Massachusetts v. Mellon, 262 U.S. 447 (1923), the Court has simply refused permission for parties to file bills of complaint without hearing them on the issue or producing an opinion. E.g., Massachusetts v. Laird, 400 U.S. 886 (1970) (constitutionality of United States action in Indochina); Delaware v. New York, 385 U.S. 895 (1966) (constitutionality of electoral college under one–man, one–vote rule).
1058 Wyoming v. Oklahoma, 112 S.Ct. 789, 798–799 (1982). The principles are the same whether the Court’s jurisdiction is exclusive or concurrent. Texas v. New Mexico, 462 U.S. 554 (1983); California v. West Virginia, 454 U.S. 1027 (1981); Arizona v. New Mexico, 425 U.S. 794 (1976).
1059 A classic but now dated study is Warren, Legislative and Judicial Attacks on the Supreme Court of the United States—A History of the Twenty–Fifth Section of the Judiciary Act, 47 L. Rev.1,161 (1913). The most comprehensive consideration of the constitutional issue is Hart, The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 L. Rev.1362 (1953), reprinted in Hart & Wechsler, op. cit., n.250, 393.
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